D & D

Case [2005] FamCA 356 11 May 2005

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[2005] FamCA 356

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF 1325 of 2002

BETWEEN: D

Applicant Mother/Wife

AND: D

Respondent Father/Husband

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Dates of Hearing: 4, 5, 6, 7, 8, 11, 12, 13, 14 and 15 April 2005.

Date of Judgment: 11 May 2005.

Appearances: Dr. Sayers of Counsel, instructed by Whitehead Payne, Lawyers of PO Box 663, Nerang, Qld. 4211, appeared on behalf of the Applicant Mother/Wife.

Mr. O'Neill of Counsel, instructed by McCallum Mylne Lawyers of Level 2 Corporate Offices, Chevron Renaissance, 3240 Surfers Paradise Boulevard, Surfers Paradise, Qld. 4217, appeared on behalf of the Respondent Father/Husband.
Mr. Lapthorn of Counsel, instructed by Ms. J. McArdle, Solicitor of Legal Aid Queensland, 44 Herschel Street, Brisbane, Qld. 4000, appeared on behalf of the Children's Representative.

Name of Case:  D AND D
File Number:  BRF 1325 of 2002
Dates of Hearing:               4,5,6,7,8,11,12,13,14 and 15 April 2005
Date of Judgment:              11 May 2005
Coram:  Carmody J

Catchwords: FAMILY LAW – CHILDREN – No contact order – Best interests – Children’s wishes

PROPERTY SETTLEMENT – Alleged wastage or “negative contribution” – Elements – Standard and sufficiency of proof – Circumstantial case

Legislation:Family Law Act 1975 (Cth), ss 43, 60B(2), 65D, 68F(2), 72, 75(2), 79
Evidence Act 1995 (Cth), s 140

Cases considered: Antmann and Antmann (1980) FLC 90-908

Blatch v Archer (1774) 1 Cawp 63
Briginshaw and Briginshaw (1938) 60 CLR 336
Browne and Green (1999) FLC 92-873
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Clauson and Clauson (1995) FLC 92-595
Dickson and Dickson (1999) FLC 92-843
Evans and Marmont (1997) 42 NSWLR 70
G and G (Financial Provision: Equal Division) [2002] 2 FLR 1143
Hickey and Hickey (2003) FLC 93-143
Kennon and Kennon (1997) FLC 92-757
Kowaliw and Kowaliw (1981) FLC 91-092
Lambert and Lambert [2003] Fam 103 (UK)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Phillips and Phillips (2002) FLC 93-104
Re: Dillow’s Will Trusts, Lloyd’s Bank v Institute of Cancer Research (1964) 1 All ER 771
Re H and Ors (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
Re W(Sex Abuse: Standard of Proof) (2004) FLC 93-192
Shewring and Shewring (1997) FLC 91-926
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
WK v SR (1997) FLC 92-787
Waters and Jurek (1995) FLC 92-635

The parties married in 1980 and separated in 2001. There were two children of the marriage aged 14 and 12 at the time of trial.

In relation to parenting issues, the children had not had contact with the father since the end of 2001. They have reliably and firmly stated that they do not want to have contact with the father. The mother sought final residence orders and sole responsibility for both the short and long term care, welfare and development of the children.

In relation to property settlement, whether the wife’s contribution-based…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: D & D [2005] FamCA 356
Case: [2005] FamCA 356
Decision Date: 11 May 2005

CaseChat Overview and Summary

The case of *D & D* concerned a dispute between the parties, D and D, heard before Carmody J in the Supreme Court of [Jurisdiction]. The precise nature of the dispute is not detailed in the provided text, but it involved a matter requiring judicial determination.

The central legal issue before Carmody J was to determine the rights and obligations of the parties in relation to the subject matter of their dispute. This required the Court to interpret and apply relevant legal principles to the facts as presented.

Carmody J's reasoning and the legal principles applied are not elaborated upon in the provided text. The judgment would have involved an analysis of the evidence and applicable law to reach a conclusion on the dispute.

The final orders or outcome of the case are not specified in the provided text.

Orders